Summary
remanding to the Agency where the claimant alleged that he was unable to get the notice to show cause translated until after the response was due and that he sent a response explaining his linguistic difficulties to the ALJ, but the ALJ did not consider or discuss this letter in the dismissal decision
Summary of this case from Mary B. v. SaulOpinion
No. C 01-02660 SI
October 1, 2003
ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND REMANDING FOR FURTHER CONSIDERATION
Plaintiff Saeng Saephan brought this action pursuant to 42 U.S.C. § 405(g) challenging dismissal of his request for hearing because he failed to attend a scheduled hearing. The Commissioner of Social Security brought this motion to dismiss plaintiff's complaint. Having reviewed all the relevant documents, the Court hereby DENIES defendant's motion to dismiss and REMANDS to the Commissioner for the limited purpose described herein.
BACKGROUND
Plaintiff filed an application for Supplemental Security Income (SSI) under title XVI of the Act which was denied initially and on reconsideration by the Social Security Administration. On December 27, 1999 plaintiff timely filed a request for hearing before an ALJ to review the denial of disability benefits. (See Decl. at Bill Cho ("Cho Decl.") ¶ 3(a) and Exhibit 1). On May 17, 2000 an Amended Notice of Hearing was mailed to the plaintiff to advise him of the time and place set for the hearing. (See Attach, to Cho Decl. Exhibit 2). The hearing was convened as noticed, but the plaintiff failed to appear at the scheduled hearing or to give any notice or explanation for his nonappearance. Pursuant to 20 C.F.R. § 416.1457(b) he was sent by certified mail, a "Notice to Show Cause" on August 15, 2000 why his request for a hearing should not be dismissed for failure to appear. (See Cho Decl. at ¶ 3(a) and Exhibit 2). On August 31, 2000 the ALJ dismissed the request for a hearing finding there was no good cause for plaintiff's failure to respond to the Notice to Show Good Cause. Id. On October 2, 2000 plaintiff submitted a Request for Review advising the Commissioner that he had failed to appear at the scheduled hearing because he had received the Notice of Hearing late. (See Cho Decl. on at ¶ 3(b) and Exhibit 3). The plaintiff also asserted in his Request for Review that his attorney was unaware of the scheduled hearing date. Id. In addition, the plaintiff disputed the claim that he did not respond to the August 15, 2000 Notice to Show Good Cause by including a copy of a letter he claims to have sent to the ALJ on August 21, 2000. In that letter the plaintiff stated:
"I dearly regret I could not meet with you at our preliminary meeting and I apologize in advance since I received your appointed letter a little late because I had to get it translated and could not understand it any sooner. I understand it is very important matter concerning my SSI. I really regret not being at the meeting on the 17th of May since I got my letter translated on the 18th of May."
(See Attach. to Cho Decl. Exhibit 3). On June 8, 2001 the Appeals Council denied the Request for Review of Dismissal after concluding that there was no basis under the administrative regulations to grant plaintiff's request for review. (See Cho Decl. at ¶ 3(c) and Exhibit 4).
On July 12, 2001 the plaintiff filed a complaint in the United States District Court for the Northern District of California against the Commissioner of Social Security seeking judicial review of the denial of a claim for benefits under Title XVI of the Social Security Act (See Cho Decl. at ¶ 3(c)). On January 2, 2002 the defendant filed a motion to dismiss the complaint for lack of subject matter jurisdiction. On August 29, 2002 the District Court issued an order directing the plaintiff to file an opposition to defendant's motion to dismiss no later than September 20, 2002. — That order stated that if the plaintiff filed no opposition, the Court would rule on the defendant's motion based on the present record (Ord. Direct. Plaintiffs Resp. to Mot. to Dismiss). The plaintiff has yet to file any opposition to defendant's motion to dismiss.
LEGAL STANDARD
Judicial review of social security claims arising under titles II and XVI of the Act is provided for, and limited by, sections 405(g) and (h) of the Act. These provisions provide in pertinent part:
(g) Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.
(h) The findings and decision of the Commissioner of Social Security after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or government agency except as herein provided. No action against the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 or 1346 of title 28 to recover on any claims arising under this title.42 U.S.C. § 405(g), (h).
It is clear based on these provisions of the Act that the only civil action permitted on any claim arising under title II or title XVI is an action to review "the final decision of the Commissioner made after a hearing." See Califano v. Sanders, 430 U.S. 99, 108 (1977).
The term "final decision" is not defined in the Act, and "its meaning is left to the [Commissioner] to flesh out by regulation." Weinberger v. Salfi, 422 U.S. 749, 767 (1975). The regulations, in turn, provide that a claimant must complete a four-step administrative review process to obtain a judicially reviewable final decision. 20 C.F.R. § 404.900(a), 416.1400(a); See Sanders, 430 U.S. at 102 ("The Act and regulations thus create an orderly administrative mechanism, with district court review of the final decision of the [Comissioner].")
Under Social Security Administration regulations, an individual claiming entitlement to benefits first receives an initial determination. 20 C.F.R. § 404.902, 416.1402. If dissatisfied with this determination, the claimant may ask for reconsideration. 20 C.F.R. § 404.907, 416. 1407. If dissatisfied with the reconsidered determination, the claimant may request a hearing before an Administrative Law Judge (ALJ). 2OC.F.R. § 404.929, 416.1429. If the claimant is dissatisfied with the ALJ's hearing decision, the claimant may request that the Appeals Council review the decision. 20 C.F.R. § 404.967, 416.1467. The Appeals Council may deny the request for review and allow the ALJ's decision to stand as the final decision of the Commissioner or the Appeals Council may grant the request for review and issue its own decision. 20 C.F.R. § 404.981, 416.1481. The Appeals Council's decision, or the decision of the administrative law judge if the request for review is denied, is binding unless the party files an action in Federal district court or the decision is revised. Id. § 416.1481.
DISCUSSION
Defendant argues that because the plaintiff did not exhaust his administrative remedies plaintiff did not obtain a judicially reviewable "final decision" and the complaint seeking judicial review of his claim for benefits should be dismissed. Defendant bases his argument on the fact that plaintiff only completed the first two steps of the administrative process: he received an initial decision denying benefits and he sought and received reconsideration of that determination. At the next step in the process, after making a request for a hearing before an ALJ, he failed to appear for the scheduled hearing. The ALJ dismissed the request for hearing determining there was no good cause for the failure to appear. (See Cho Decl. at ¶ 3(a) and Exhibit 2). The ALJ based his decision on the plaintiff's failure to respond to a Notice to Show Cause. Id.According to the regulations, an ALJ may dismiss a hearing request if a party or his representative fail to appear at the scheduled hearing after having been notified that failure to do so would subject them to dismissal without further notice or when the party does not give a good reason for the failure to appear within 10 days after the ALJ mails the party a notice asking why the party did not appear. 20 C.F.R. § 416.1457(b)(1), 20 C.F.R. § 404.957(b)(1). In this instance the ALJ must also find there was not "good cause" for the failure to appear. Id. When "determining good cause or good reason under this paragraph, an ALJ will consider any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which a plaintiff may have." Id. § 416.1457(b)(2).
Plaintiff argues that he did respond to the ALJ's Notice to Show Cause and that in his response he cited his linguistic limitations for his failure to appear. This is particularly relevant because, according to the above regulations, plaintiff's difficulty reading the English language could constitute good cause for his failure to appear at the scheduled hearing.
It is also necessary to point out that the AL J's assertion that the plaintiff failed to respond to the Notice to Show Cause sent to him on August 15, 2000 highlights a clear discrepancy in the parties' accounts. Furthermore, it is important to note that there is no evidence in the record that the ALJ considered the letter from the plaintiff explaining his failure to appear, which was clearly included in his request for review, nor any explanation why that letter would not be considered. This is particularly relevant because a disability benefits claimant has a right conferred by statute to have a hearing before an ALJ. See 42 U.S.C. § 405(b)(1). In fact, Section 405(b)(1) guarantees any individual against whom an unfavorable determination of disability has been made "reasonable notice and opportunity for a hearing."
Defendant argues that this court does not have jurisdiction to determine whether defendant's request for a hearing was properly dismissed. 20 C.F.R. § 404.959, 416.1459. An ALJ or the Appeals Council may vacate a dismissal of a hearing request if the plaintiff makes a timely request to vacate and shows good cause why the hearing request should not have been dismissed. 20 C.F.R. § 404.960, 416.1460. Defendant argues that the ALJ's determination that good cause has not been shown and that the claimant is not entitled to reinstatement of a hearing request is not, however, subject to judicial review under the statute. It argues that this determination is made without a hearing and thus it is not "a final decision of the Commissioner made after a hearing" to fit within the purview of 42 U.S.C. § 405(g). See generally, Califano v. Sanders, 430 U.S. 99, 108 (1977). Defendant, therefore, argues that section 405(g) clearly limits judicial review to "a final decision of the Secretary made after a hearing." Id.
Sanders was premised on a concern with frustrating the congressional purpose to impose a 60-day limitation upon judicial review of the Commissioner final decision on the initial claim for benefits. This policy factor underlying Sanders is not present here because the plaintiff here has not bypassed an opportunity for judicial review. In addition, unlike in Sanders, precluding judicial review here would mean that the plaintiff has been completely deprived of any access to judicial review of the agency's denial of his claim. The plaintiff in Sanders, on the other hand, had been given an opportunity for judicial review but had failed to utilize it.
Two decisions of the Supreme Court, Matthews v. Eldridge, 424 U.S. 319 (1976) and Weinberger v. Salfi, 422 U.S. 749 (1975), on the other hand, hold that the hearing requirement of Section 405(g) is not always enforced. In Matthews, the Court explained that there are two conditions for review under Section 405(g). The first requirement, which is not waivable, is that the claim for benefits be presented to the Commissioner. Matthews, at 328. The plaintiff here has fulfilled the jurisdictional requirement that he present the merits of his claim to the Commissioner for decision and that there has been a final decision by the Commissioner on the merits of plaintiff's claim as well as his claim for a right to a hearing before an ALJ.
The second requirement, that a party exhaust administrative remedies prior to seeking judicial review, is subject to waiver. Waiver is appropriate where the Commissioner has concluded that further proceedings are unwarranted either because the internal needs of the agency are fulfilled or because the relief that is sought is beyond the Commissioner's power to confer. Matthews, 424 U.S. at 330.
Allowing waiver would not offend the policy requiring exhaustion of administrative remedies expressed in Section 405(g). As the Supreme Court has explained:
Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.Weinberger, 422 U.S. at 765. Plaintiff has pursued every available administrative avenue to overturn the dismissal. The Secretary's decision on this issue is final. That the Secretary denied a hearing should not prevent judicial review where, as here, the Secretary's denial appears to have failed to consider whether plaintiff had good cause for missing the hearing. See Bellantoni v. Schweiker, 566 F. Supp. 313, 315 (E.D.N.Y. 1983) (Even though there was no reviewable final decision on claim for disability benefits, decision on question of whether claimant's request for Appeals Council Review was timely could be reviewed).
"It would be curious indeed if the Secretary could foreclose judicial review, for whatever reason, by merely denying the claimant a hearing."Howard v. Heckler, 661 F. Supp. 654, 656 (N.D.Ill. 1986). This concern is heightened where, as here, the claimant alleges that the agency denied a hearing in violation of its own regulations. Id. As the Seventh Circuit reaffirmed:
The obligation of an agency to follow its own regulations is the primary building block of administrative law:
"When an administrative agency promulgates rules to govern its proceedings, these rules must be scrupulously observed . . . For once an agency exercises its discretion and creates the procedural rules under which it desires to have its actions judged, it denies itself the right to violate these rules. If an agency in its proceedings, violates its rules and prejudice results, any action taken as a result of the proceedings cannot stand."Scott v. Heckler, 768 F.2d 172, 178-179 (7th Cir. 1985). The court is "not anxious to embrace a result that insulates an administrative decision from judicial scrutiny where the claim is made that the agency failed to follow its own regulations." Howard, at 657.
The Court remands this case for consideration by the Commissioner of whether the plaintiff had good cause for failure to appear at the hearing. If good cause is found, plaintiff must be granted a hearing. The merits of plaintiff's underlying claim for disability benefits would become reviewable following the outcome of that hearing.
CONCLUSION
For the foregoing reasons, the Court hereby DENIES defendant's motion to dismiss and REMANDS to the Commissioner for the limited purpose described above [docket #11].
IT IS SO ORDERED.